MUMBAI: Two influential senators have written to the Department of Homeland Security (DHS), urging the agency to retain and expeditiously implement the final H-1B selection rule that was issued in January, under the Trump administration. This rule had sought to allocate H-1B visas based on wages offered by the employers.
This letter has been sent a few days prior to the opening of the registration window for the H-1B cap filing season, which will commence on March 9. On February 4, under the Biden administration, DHS announced a delay in the effective date of the H-1B selection rule from March 9 to December 31, 2021.
Senator Dick Durbin, chair of the Senate judiciary committee and Senator Chuck Grassley, ranking member of the Senate judiciary committee, in their letter state: “The practical effect of this delay is that outsourcing companies will continue to game the lottery system and secure thousands of new H-1B visas for fiscal 2022 since the H-1B filing season begins in a few weeks.” They urge the DHS to retain and implement this rule as soon as possible – ideally before the upcoming H-1B cap lottery.
“If DHS finds that the H-1B selection rule needs to be further refined to avoid unintended consequences, we ask that you quickly identify and make these changes to improve the rule,” states their letter.
As TOI had reported under this final H-1B selection rule, H-1B cap visas would be allocated according to wage levels, giving priority to those earning the highest salaries in their respective occupations and geographic areas of employment. In effect, the H-1B cap visas would be awarded first to beneficiaries (individuals being sponsored by US companies) in Level 4 (which is the highest of the four wage categories and covers very experienced workers), then to those at Level 3, and so on, until the annual quota of 85,000 had been met.
Incidentally, in the comprehensive immigration bill introduced by the Biden administration, the Secretaries of Homeland Security and Labour have been empowered to develop regulations to establish procedures for prioritizing certain visa applications based on the wages offered by employers. In this context, Nasscom had stated that if implemented incorrectly this could cause damage.
“For example, it could preclude - lower cost regions in the US from being able to obtain the skilled workers they need (such as doctors and nurses); universities and companies developing vaccines from getting the researchers and medical staff they need; and prevent start-ups and certain sectors of the tech industry vital to economic growth from getting the talent they need as well.”
The Senators refer to a May 4, 2020 analysis by the Economic Policy Institute, which points out that a majority of H-1B employers use the visa program to pay migrant workers below-market wages, and half of the top 30 H-1B employers use an outsourcing business model.
“This is simply unacceptable and does not reflect how Congress intended the H-1B program to work. While Congress should pass legislation to overhaul the H-1B visa program, DHS and the Department of Labour should use their robust regulatory authority to reform the H-1B program to protect American workers from displacement and migrant workers from exploitation,” adds their letter.
Employers offering high wages to international graduates of American universities often lose out in the H-1B lottery, while thousands of new H-1B visas are issued each year to outsourcing companies offering below-market wages and seeking to offshore American jobs, they explain.